RANGANATHAN - (1.) THESE two appeals by Thermax (Pvt.) Ltd. (hereinafter referred to as 'the assessee') raise a question of interpretation of two similar notifications issued under Rule 8 of the central Excise Rules, 1944 ('the Rules', for short).
(2.) THE assessee imported goods described as "Sanyo Single Effect Chiller" from Japan for the purpose of using the same for refrigeration/air conditioning of the factories of Indian Rayon Corporation at Veraval and Nirlon Synthetics Fibre and Chemicals Ltd. It paid the customs duty leviable thereon at the appropriate rate under the relevant entry of the customs tariff but claimed exemption from the additional duty of customs leviable under S. 3(1 of the Customs Tariff Act, 1975 (C.T. Act, in short). The relevant portion of the said S. reads thus: "3. Levy of additional duty equal to excise duty. (1 Any article which is imported into India shall, in addition, be liable to a duty (hereafter in this S. referred to as the additional duty) equal to the excise duty/or the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. explanation. In this section, the expression 'the excise duty for the time being leviable on a like article if produced or manufactured in India' means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is not so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs and where such duty is leviable at different rates, the highest duty." In view of the language of the above provision, it is common ground between the parties that notifications of exemption from central excise duty issued from time to time under Rule 8(1 of the Rules would be applicable, in the case of imported goods, for determining the leviability of the additional duty under S. 3(1 abovementioned. In 444 other words, if any goods are entitled to full or partial exemption from payment of central excise under any such notification, the exemption or concession would also extend to the additional duty payable under Section 3(1 of the C.T. Act, subject, of course, to the fulfilment of any conditions or requirements that may have to be complied with for availing the exemption under any particular notification. The assessee, in the present case, cleared the imported goods after paying the customs duty as well as the additional duty (hereinafter referred to as 'CVD') but, on second thoughts, decided that it should have claimed a concession in respect of the CVD on the strength of Notification Nos. 63 of 1985 and 93 of 1976 issued under Rule 8 of the central Excise Rules. It, therefore, made applications for refund of the CVD but these were rejected by the Assistant Collector of Customs by his orders dated 25/02/1985 and 30/09/1985.
(3.) THE assessee appealed to the Collector of Customs (Appeals) from these orders. The Collector allowed the appeal from the order dated 25/02/1985 but his successor-in-office, who dealt with the appeal from the later order of 30/04/1985, took a different view and dismissed the assessee's appeal. The assessee as well as the department preferred appeals from the respective order which went against them. The tribunal accepted the department's appeal but dismissed the assessee's appeal. Hence these two appeals by the assessee. It is common ground that customs duty is payable and has been paid on the imported goods under customs tariff Item No. 84.17(1 at 40 per cent of the value of the imported goods plus a surcharge of 25 per cent thereon. The rate of CVD, however has to be determined on the basis of Item No. 29-A of the central excise tariff. It is common ground that "chillers" fall under sub-item (3 of Item No. 29-A and that the basic excise duty payable thereon was at 80 per cent of the value of the goods under the above item read with Notification No. 42 of 1984/C.E. dated 1/03/1984.;